Filed 8/6/13 In re J.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.M. et al., a Person Coming Under 

the Juvenile Court Law.

 H039138

 (Santa Clara County

 Super. Ct. Nos. JD20291, JD20292, 

 JD20293)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN‟S SERVICES,

Plaintiff and Respondent,

v.

C.V.,

Defendant and Appellant.

Appellant C.V. (the mother) challenges the juvenile court‟s order terminating her 

parental rights and selecting adoption as the permanent plan for her three children. She 

claims that the court erred in failing to find that the parental relationship exception 

precluded termination. We disagree and affirm the order.

I. Background

The mother‟s three children, five-year-old Jo.M., three-year-old Ja.M., and eightmonth-old H.R. (the children),were detained in August 2010. Petitions were filed 
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alleging that the mother‟s chronic ongoing substance abuse placed the children at risk of 

physical harm and neglect in her care. The mother had not been caring for the children. 

Instead, she had left the children in the care of the children‟s great-grandparents, who 

were too aged and ill to care for them.

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The mother had an ongoing and long-standing 

methamphetamine habit. The fathers of the children were both incarcerated. The eldest 

child reported that “he does not see [the mother] a lot,” even though she lived with the 

great-grandparents. The maternal grandmother reported that she and the maternal 

great-grandparents had been taking care of the children “since they were born,” with the 

great-grandparents providing “most of the care.” The great-grandparents “didn‟t get any 

help from” the mother. 

The mother and both fathers submitted on the social worker‟s report at the October 

2010 jurisdictional hearing, and the court found the petition true. At the December 2010 

dispositional hearing, the court removed the children from the mother‟s custody, placed 

the children in foster care, and ordered that the mother and both fathers be afforded 

reunification services. The mother‟s case plan required her to complete a specific 

parenting class and a program of counseling or psychotherapy, undergo random drug 

testing on a weekly basis, attend a 12-step program at least three times a week and 

provide verification of attendance, complete a substance abuse assessment, and 

participate in any recommended drug treatment programs. The court ordered that the 

mother was to have supervised visits with the children for two hours each week. 

The mother, who was incarcerated until January 2011, completed a parenting 

class, attended NA, and completed a substance abuse program while she was in jail, but 

the parenting class was not the one required by her case plan. She was consistently 

visiting the children. At the July 13, 2011 six-month review hearing, the Santa Clara 

 

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The maternal great-grandfather died in February 2011. The maternal 

great-grandmother was severely ill throughout the dependency proceedings.
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County Department of Family and Children‟s Services (the Department) recommended 

that the mother‟s services be continued but that services for the fathers be terminated. 

The mother had completed a parent orientation class, but she had not completed the 

specific parenting class required by her case plan. She had attended 12 sessions of 

counseling with a therapist. The mother had not been compliant with her drug testing 

requirements. She had failed to test on “many occasions when she has been required to 

test.” The mother had not been attending the required number of NA meetings each 

week. She had continued to consistently visit the children, but she was often late for 

visits. The court continued her reunification services and her weekly visits with the 

children. These visits were twice weekly for one hour each. 

In November 2011, after a four-month transition period, the children moved from 

a foster home, in which they had been placed for a year, to a prospective adoptive home. 

At the November 2011 12-month review hearing, the Department recommended that the 

mother‟s services be terminated and a Welfare and Institutions Code section 366.26 

hearing be set. The mother still had not completed the specific parenting class required 

by her case plan. She had continued to be noncompliant with the drug testing 

requirement. She had failed to test on many occasions and had once submitted a sample 

that the lab determined was not urine. The mother had nearly always been late for visits 

with the children. The court terminated the mother‟s reunification services and set a 

Welfare and Institutions Code section 366.26 hearing. The mother‟s supervised visits 

with the children were reduced to once a week for one hour. 

Although the Welfare and Institutions Code section 366.26 hearing was originally 

set for March 2012, it was repeatedly continued. In August 2012, the mother filed a 

Welfare and Institutions Code section 388 petition seeking custody or reinstatement of 

reunification services. At the September 2012 hearing on this petition, the mother 

testified that the children were “real attached to me” during visits. She maintained that 

she and the children had “a very strong” bond. In her view, the children would “go 
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through a lot of pain” if she lost them. The mother claimed that “I‟m the one that raised 

them, taught them.” Her trial counsel introduced as an exhibit service logs describing the 

visits between the mother and the children. These logs showed that the mother, often 

accompanied by the maternal grandmother and the maternal great-grandmother, had 

pleasant visits with the children. They also demonstrated that the mother missed a 

number of visits and was often late for visits. The court denied the petition. A second 

such petition was summarily denied a couple of weeks later. 

At the October 2012 Welfare and Institutions Code section 366.26 hearing, the 

sole issue was applicability of the parental relationship exception. The Department 

recommended that parental rights be terminated and adoption be selected as the 

permanent plan. The mother had continued to be late to visits. She was late for more 

than half of the visits after reunification services were terminated. It was undisputed that 

the children enjoyed the visits, that they had “a relationship with their mother,” and that 

they “enjoy spending time” with her. The prospective adoptive family was open to future 

contact between the children and the mother. 

The two older children, who were at this point six years old and four years old, 

gave inconsistent indications of their desires. They had both said they would like to live 

with their “biological family,” but the eldest had also said that he would be “happy” if the 

court‟s decision was that he would live with the prospective adoptive parents. And he 

had told the prospective adoptive parents that “he feels bad as he wants to be in their 

home and „loves it here‟ but doesn‟t want to say no to his mother.” The middle child said 

that she wanted the prospective adoptive family to be “her forever family.” The mother 

did not appear at the hearing, and her trial counsel did not present any testimony.

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The mother‟s trial counsel‟s original proposed witness list included the mother 

who “will testify as to her bond with the children,” but her amended list did not include 

the mother. 
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The court rejected the mother‟s contention that the parental relationship exception 

applied. “[N]ot withstanding [sic] how pleasant the visits were, they continued to be 

supervised once a week for an hour or less and that could never . . . suggest that [the 

mother] had a parental role with the children.” The court found that there was not a 

“beneficial” relationship, and, even if there was, it would not outweigh the benefits to the 

children of adoption. The court terminated parental rights and selected adoption as the 

permanent plan for the children. The mother timely filed a notice of appeal from the 

court‟s order. 

II. Analysis

“Adoption must be selected as the permanent plan for an adoptable child and 

parental rights terminated unless the court finds „a compelling reason for determining that 

termination would be detrimental to the child due to one or more of the following 

circumstances: [¶] (i) The parents have maintained regular visitation and contact with 

the child and the child would benefit from continuing the relationship.‟ ” (In re Bailey J.

(2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) This is known as the parental 

relationship exception.

The proponent of the parental relationship exception bears the burden of 

producing evidence of the existence of a beneficial parental relationship. Because the 

existence of such a relationship is a factual issue, the court‟s finding on this point is 

reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) “[A] 

challenge to a juvenile court‟s finding that there is no beneficial relationship amounts to a 

contention that the „undisputed facts lead to only one conclusion.‟ [Citation.] Unless the 

undisputed facts established the existence of a beneficial parental or sibling relationship, 

a substantial evidence challenge to this component of the juvenile court‟s determination 

cannot succeed.” (Ibid.) 
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Even if the juvenile court finds a beneficial parental relationship, the parental 

relationship exception does not apply unless the court also finds that the existence of that 

relationship constitutes a “compelling reason for determining that termination would be 

detrimental . . . .” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B).) A juvenile court‟s 

ruling on whether there is a “compelling reason” is reviewed for abuse of discretion as 

the court must “determine the importance of the relationship in terms of the detrimental 

impact that its severance can be expected to have on the child and . . . weigh that against 

the benefit to the child of adoption.” (Bailey J., supra, 189 Cal.App.4th at p. 1315.)

“ „The factors to be considered when looking for whether a relationship is 

important and beneficial are: (1) the age of the child, (2) the portion of the child‟s life 

spent in the parent‟s custody, (3) the positive or negative effect of interaction between the 

parent and the child, and (4) the child‟s particular needs.‟ [Citation.] „Interaction 

between natural parent and child will always confer some incidental benefit to the child. 

The significant attachment from child to parent results from the adult‟s attention to the 

child‟s needs for physical care, nourishment, comfort, affection and stimulation. 

[Citation.] The relationship arises from day-to-day interaction, companionship and 

shared experiences. [Citation.] The exception applies only where the court finds regular 

visits and contact have continued or developed a significant, positive, emotional 

attachment from child to parent.‟ [Citation.] Evidence of „frequent and loving contact‟ is 

not sufficient to establish the existence of a beneficial parental relationship.” (Bailey J., 

supra, 189 Cal.App.4th at pp. 1315-1316.)

The evidence before the juvenile court supports its finding that the mother did not 

have a beneficial relationship with the children. These children were detained when they 

were very young. The youngest was less than a year old and the eldest just five years old. 

Even before their detention, the mother was not their caregiver. The maternal 

great-grandparents (and to a lesser extent the maternal grandmother) had been 

responsible for the children since they were born. The children had little contact with 
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their mother prior to their detention despite the fact that she lived in the same home with 

them and the great-grandparents. Hence, she had not established a substantial parental

relationship with the children prior to their detention. After their detention, the mother‟s 

relationship with the children was limited to supervised weekly visits. But for the period 

when she was incarcerated during the first few months after detention, the mother arrived 

late for most of these hour-long supervised visits, further limiting their duration. Given 

that she had failed to establish a parental relationship prior to detention, her frequently 

tardy, supervised visits could not possibly succeed in developing such a relationship.

The evidence relied on by the mother did not establish otherwise. It is not enough 

for a parent to show that they consistently visited the children. The parent must show 

that a parental relationship exists that is beneficial to the children. The mother testified at 

the hearing on her Welfare and Institutions Code section 388 petition that: (1) she had 

“raised . . . [and] taught” the children; (2) the children were “real attached to me” during 

visits; (3) she and the children had “a very strong” bond; and (4) she believed that the 

children would “go through a lot of pain” if she lost them. All of the other evidence 

demonstrated that the mother had not “raised” the children. The great-grandparents had 

taken on this burden because the mother shirked it. While it was undisputed that the 

children enjoyed the visits, the juvenile court was not required to credit the mother‟s 

subjective belief that the children were “real attached” to her or that they had a “strong 

bond.” The children were plainly happy living with the prospective adoptive parents, 

who acted as and were treated by the children as their parents. The entire relationship 

between the children and the mother was a product of supervised visits that were 

frequently less than an hour long due to the mother‟s refusal to arrive on time. The 

juvenile court could have concluded that this type of relationship did not offer any 

significant benefit to the children. 

Since substantial evidence supports the juvenile court‟s finding that there was not 

a beneficial parental relationship, there is no need to consider the “compelling reasons” 
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component of the parental relationship exception. A minimal parental relationship can 

never outweigh the benefit to young children of adoption into a home in which they are 

happy and flourishing. The juvenile court did not err in concluding that the parental 

relationship exception did not apply and terminating the mother‟s parental rights.

III. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Grover, J.